On Tuesday, 42 Senate Democrats prevented a vote on a bill to help the victims of sex trafficking because the bill does not provide federal funding for elective abortions. Here are five reasons why this filibuster is insane.
1. The restriction on federal funding of abortion is a longstanding and popular amendment.
The provision, commonly known as they Hyde amendment, was first enacted in 1976 to stop federal funding of abortion for Medicaid recipients. There is not a single Hyde amendment in permanent law that covers all federal spending. Instead, Hyde-like amendments have been attached to a variety of bills–covering everything from the Defense Department to the Indian Health Service–for decades.
It depends on how you phrase the question, but polls show that strong majorities of American voters oppose federal funding of abortion. A Quinnpiac poll from 2010 found that 67 percent of voters oppose public funding of abortion, while only 27 percent support it. The Hyde amendment is so popular that Democrats were unable to repeal it in 1993 when they held huge majorities in Congress and controlled the White House. Democrats didn’t even try to repeal the Hyde amendment as it applies to Medicaid when they again held the White House and had huge majorities, including a filibuster-proof Senate, in 2009.
The fight over federal funding of abortion under Obamacare was so controversial it nearly killed the bill. (Democrats repeatedly denied that the Obamacare covered abortion, but in reality it does. States do have the option to pass a law to exclude abortion coverage from Obamacare plans sold within their borders). The issue played a significant role in the Democratic loss of the House of Representatives in 2010.
2. The filibuster divides Democrats, not Republicans.
Four Senate Democrats–Heidi Heitkamp of North Dakota, Joe Donnelly of Indiana, Bob Casey of Pennsylvania, and Joe Manchin of West Virginia–joined a united Republican caucus to break the Democratic filibuster on Tuesday. The White House has not issued a veto threat, which means it would take just two more Senate Demorats to allow this bill to become law.
At a press conference Tuesday, Senator Dick Durbin of Illinois said the legislation is another example of the Republican “war on women.” When I asked Durbin after the press conference if that criticism applies to the four Democrats who voted with Republicans, he replied: “Each of them has their own position when it comes to choice and women’s health. I respect it, you know, even though I may disagree personally.”
So when Republicans vote to move the bill forward, it’s perpetuating a war on women. When four Democrats vote the same way, Durbin says he “respect[s]” them for it. Does that make sense to anyone other than Senator Durbin?
3. Democrats on the Judiciary Committee unanimously voted for this bill including the Hyde amendment.
Minority Leader Harry Reid has accused Republicans of using “sleight of hand” to conceal the fact that the bill includes the Hyde amendment. That’s ridiculous. The bill was re-introduced in this Congress on January 13. It included the Hyde amendment, and it had Democratic cosponsors. On pages four and five of the legislation, the bill explicitly cross references another law that includes the Hyde restrictions. This is fairly common legislative practice.
The bill made it through a committee hearing and markup in February with the Hyde amendment in place. The bill was voted unanimously out of committee on March 2. It wasn’t until March 10 that Democrats objected to the bill. Some were willing to admit they simply hadn’t noticed it. Senator Durbin told Politico: “What do you want me to tell you? We missed it!” (Update: On Wednesday afternoon, the AP reported that an aide to Senator Amy Klobuchar of Minnesota, who serves on the Judiciary Committee, knew about the provision before votes were cast.)
4. Harry Reid and other Democrats have intentionally voted for the Hyde amendment many times before.
When the Hyde amendment was up for a direct vote in 2008, Harry Reid voted for it. Reid’s spokesman insisted in 2009 that Reid is “strongly pro-life … and I resent any suggestion to the contrary, and his voting record speaks for himself.” Reid and other Democrats who call themselves pro-choice have voted many more times for defense authorization bills and legislation to fund Medicaid that include the underlying Hyde amendment.
So why is the bill to combat sex-trafficking any different? Reid and other Democrats argued on Tuesday that the main distinction is that the fund set up by this bill to help sex-trafficking victims is funded with fines paid by criminals, rather than tax dollars.
Reid said at his Tuesday press conference that the bill to combat sex trafficking “sets a dangerous precedent by applying Hyde restrictions on non-taxpayer dollars.” The clear implication from Reid and other Senate Democrats was that they would support the bill with the Hyde amendment if it were funded with tax dollars instead of fines.
But this is a distinction without a difference: Money is fungible, and federal funds are federal funds.
5. The Hyde amendment includes exceptions for abortion in the cases of rape, incest, and when the life of the mother is endangered.
Since the 1990s, Hyde amendment restrictions on federal funding of abortion have included those exceptions, and so does the bill to combat sex trafficking. That means that any woman who becomes pregnant as a result of sex trafficking would be exempt from the bill’s restriction on abortion funding. The New York Times does not dispute this, and neither does Eleanor Clift. What federal dollars could not pay for are elective abortions that fall outside of those exceptions.
So, given the aforementioned facts, why is Harry Reid filibustering the legislation? One popular theory among some Republicans on Capitol Hill is that this has less to do with abortion politics than it does with Reid trying to prove that Republicans can’t govern. “Republicans have came in [sic] saying they would know how to govern, and what a mess they’ve made,” Senator Chuck Schumer of New York said at Tuesday’s press conference. “Now even a simple trafficking bill, they can’t get done.”
“They’re putting their own poison pills in their own bill,” Schumer added. So Democrats might just be trying to jam up Mitch McConnell, even if that’s done at the expense of sex-trafficking victims. Even if the politics don’t appear to benefit Democrats, Reid can always count on Jon Stewart and some in the mainstream media to be too ignorant or biased to report accurately on the bill.
Perhaps a more likely explanation is that Democrats knew that the bill included the Hyde amendment, but the abortion lobby didn’t find out until March 10. Planned Parenthood lobbyists emailed every Senate office on Tuesday warning that opposing yesterday’s filibuster would negatively affect Planned Parenthood’s rating of senators’ records on abortion. And getting on the wrong side of Planned Parenthood and its donors is a risk most Democrats are unwilling to take.
As of Wednesday afternoon, the standoff continued. Republican majority leader Mitch McConnell has vowed that President Obama’s attorney general nominee Loretta Lynch will not receive a vote until the Democrats end their filibuster. McConnell said he will bring the bill to the floor as many times as it takes to pass it.
